Obama nominates Kagan for Solicitor General

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Dean Elena Kagan ’86 broke the news to the Harvard Law School community Monday, January 5, that President-elect Barack Obama ’91 would nominate her for the post of Solicitor General of the United States. If confirmed by the Senate, Dean Kagan would resign the deanship and take a leave of absence from the faculty.

Kagan, who also holds degrees from Princeton and Oxford, was among three HLS alums appointed to leading positions within the Department of Justice on the same day. D.C. attorney David W. Ogden ’81 was nominated to serve as Deputy Attorney General, while Thomas Perrelli ’91 was nominated as Assistant Deputy Attorney General.

In a separate email, Harvard University President Drew Gilpin Faust congratulated Kagan and announced that she was reviewing her options as to Kagan’s replacement, saying that she was considering appointing an interim dean and initiating a search for Kagan’s ultimate successor.

Kagan had been highly rumored as a leading contender for the post in the past few days, along with former Stanford Law dean Kathleen Sullivan ’81. Previously, she was widely considered a top choice for Deputy Attorney General. Speculation has also been rampant that Kagan could ultimately be a leading contender to be the next Supreme Court justice. Solicitor Generals work intimately with current Supreme Court justices, and as a result the officeholder has often been referred to as the “10th justice”. At least two former Solicitor Generals, including William Howard Taft and Thurgood Marshall, have held the post before ascending to the high court bench (Taft was also President of the United States in the interim, a fact that may have helped his chances). Robert Bork held the post before being nominated to the Court, but he was never confirmed.

As rumors of Kagan’s imminent appointment mounted, skeptics countered that she lacked the experience to be Solicitor General, a position that entails arguing the administration’s legal positions in the Supreme Court. Kagan has not previously argued before the Court. She has also faced difficulties with the Senate confirmation process. In 1999, then-President Bill Clinton nominated her to serve on the D.C. Court of Appeals. The Senate Judiciary Committee, then dominated by Republicans, declined to bring her nomination forward. She should have far fewer problems in a Democratic Senate which has promised to fast-track Obama’s judicial nominees. Still, Senate Republicans have promised a rocky road for Eric Holder, whom Obama tapped to lead the Department of Justice as Attorney General.

Kagan succeeded the previous dean, Robert C. Clark ’72, in 2003. Since then she has been widely credited with improving the school’s reputation and atmosphere, from cosmetic changes such as the provision of free coffee and the installation of an ice skating rink, to much more significant improvements, ranging from a series of high profile hires to curricular reform to increased funding and support for students hoping to pursue public interest careers.

President Faust offered the Dean unreserved praise. “Thanks to the efforts she has guided, the faculty is even stronger, the student experience is richer, the curriculum is fresher, and the school continues to enhance its worldwide leadership in legal education and scholarship,” she wrote in her email. Kagan sounded an emotional tone in her own announcement. “I feel today real sadness – a sense of loss of what, if confirmed, I will be leaving that is every bit as strong as my sense of anticipation of what will be to come,” she wrote. “It has been both the joy and the privilege of my life to serve as dean of this most wondrous law school. I love it, and I love the extraordinary community of people…who make it up.”

The previous Solicitor General, Paul Clement, graduated from HLS in 1992. He served from 2004 to June 2008. The post has also been held by HLS professor Charles Fried, former Dean Erwin Griswold ’28, SJD ’29, Clinton-era investigator Kenneth Starr, and Nixon prosecutor Archibald Cox ’37. Kagan, who was the first female dean of HLS, would be the first woman to hold the position of Solicitor General as well.

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